Responsabilidad penal de una empresa

It is possible that you have had doubts about how the penal code acts on a company and you ask yourself, therefore, what is the criminal responsibility of a company. In this post we will try to solve all the possible doubts about this topic! Starting by…

When is the criminal responsibility of a company?

The regulation, in article 31 of the Penal Code, indicates that criminal liability of legal persons will occur when a direct or indirect benefit is obtained as a result of the commission of an offense of the exposed catalog, in two cases:

  • Offenses committed, in the name and on behalf of the company, by legal representatives or managers who, acting individually or within a body of the legal entity, have authorization to make decisions or have powers of organization and control.
  • Crimes committed in the exercise of society’s activities, by employees, that is, those submitted to the authority of the legal or managerial representatives, when they have been able to commit these crimes because there is not sufficient supervision, surveillance and control on the part of the latter.

Moreover, the possibility of the crime does not arise only by the actions of the Administrator, Legal Representative or manager of the company, but may also arise from the activities carried out by the employees themselves.

How to deal with the criminal liability of a company?

The current legislation advocates a control system established by the organization. The penal code strengthens the implementation of prevention models as a way to exempt criminal responsibility from companies. Its design and implementation are especially important.

What is this model?

1. It has to adaptto the size and specific circumstances of the company:

  • Identifying the activities in which the crimes that should be prevented can be committed.
  • Establishing the protocols that are followed in the legal person for decision making and its execution in relation to those activities that may include the indicated crimes.
  • Paying special attention to the models of management of financial resources, in such a way that they are adequate to prevent the commission of the crimes to be prevented.

2. Must be supervised certainly by an organ of the legal entity with autonomous powers of initiative and control or legally entrusted with the function of supervising the effectiveness of the internal controls of the legal entity.

3. Must establish mechanismsso that two issues of special relevance take place:

  • That there is a channel of disclosure of internal information about activities, risks and non-compliance, to the body in charge of monitoring the model, with the duty to inform about them.
  • That there is a disciplinary system that adequately sanctions non-compliance with the measures established by the model.

4. Finally, it should be verified periodically, considering its possible modification when relevant infractions are revealed, changes in the organization, in its control structure or in the activities carried out.

What measures should I adopt as a company?

The Penal Code tells us how to implement the organizational and control model as follows:

  • Identify activitiesin which scope the crimes that should be prevented can be committed.
  • They will establish the protocolsor procedures for adopting decisions and executing them in relation to the risks detected.
  • Have management modelsof adequate financial resources to prevent the commission of crimes that must be prevented.
  • Impose the obligation to inform of possible risks and non-compliance to the body in charge of monitoring the operation and observance of the prevention model.
  • Establish a disciplinary systemthat sanctions adequately the breach of the measures established by the model.
  • Perform a periodic verification of the modeland of its eventual modification when relevant infractions of its provisions are revealed, or when there are changes in the organization, in the control structure or in the activity carried out that make them necessary.

How are these measures implemented?

This Corporate Compliance Plan and must include the following guidelines:

  • Preparation of the Risk Map: Understand the risks of commission of crimes that, due to the activity and organization of the company, exist and that, eventually, could generate criminal charges for the company.
  • Codes of Conduct and Prevention Regulations: Based on the identified risks, write Codes of Conduct for all employees with clear instructions on how to act in the performance of their work. If there are risks that only affect a specific group, they will have to write regulations for them. Important: the Code of Conduct must contain the disciplinary regime applied to its non-compliance..
  • Training in the Code of Conduct: it is the way of being able to demonstrate, before any instance, that all the employees have read and understood the Code and that they have not acted with ignorance of the will of the company. It also proves the diligence of the company in making this will understood to all employees.
  • Creation of Organs: an autonomous supervisory body should be created. A Compliance Committee is usually created who, to one of its members, appoints it as the Compliance Officer. This body must establish the controls and audits it deems appropriate to ensure compliance with the laws. In smaller companies this body can be the administrator.
  • Ethics Line: it consists in the creation of a confidential communication channel (an e-mail address, for example) to which employees can go to inform in good faith of legal breaches with a guarantee of no reprisals. It can be internal although externalizing it provides more guarantee of confidentiality.
  • Organization Model: Once all the above is done, it is convenient to translate it into a document that contains the complete explanation of how the company has organized the compliance function. This document can be very useful when explaining the adopted measures before any instance.
  • Compliance Statement: It is a public statement that reflects the commitment of the company to compliance with the laws. It is a message to customers, suppliers and, in general, to all those who come into contact with the company of their way of working. Obviously this statement only has a value if there is an effective program behind it.

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Criminal liability of a company

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